Development agreements when are they exempt
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Development Agreements – when are they exempt?. Cyrus Mehta, Partner Nabarro LLP. 58151864. Land transactions. “Pure” land transactions (transfers, leases, licences) are not caught Public works contracts: for the carry out of works

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Development agreements when are they exempt

Development Agreements – when are they exempt?

Cyrus Mehta, Partner

Nabarro LLP

58151864


Land transactions
Land transactions

  • “Pure” land transactions (transfers, leases, licences) are not caught

  • Public works contracts:

    • for the carry out of works

    • contracting authority “engages a person” to carry out works

  • Regulation 6 (2)(e) – exemption for contracts for the acquisition of land and (existing) buildings

  • But state aid requirements: Commission’s Notice on sale of land and buildings


Mixed contracts
“Mixed” contracts

  • Gestion Hotelera

    • “main object” test

    • “incidental” works

  • Article 1(2)(b) Directive: “Public contracts having as their

    object …”

  • Quedlinburg

    • “main purpose” was not acquisition of land, but procurement of building

  • Example: leases with covenants to refurbish

  • “Severability” of works


Contractual commitment to develop
Contractual commitment to develop

  • Contract:

    • for works

    • contracting authority engages a person …

    • “contract” has a Community law definition (see AG in City of Cologne)

  • Does an intention or expectation suffice?

  • Context of development

  • Flensburg case

    • sanctions for failure to develop

    • re-acquisition of property

    • but how specific can requirements be?


Contractual commitment to develop cont
Contractual commitment to develop cont ..

  • ECJ reference in Mueller

  • “specified requirements”

    • how specific?

    • outline parameters do not suffice?

  • Development “opportunities” as works concessions?

    • But still need to show “works contract”


Miscellaneous
Miscellaneous

  • Regulation 34 – subsidised works contracts

  • Use of public/private SPVs for development

    • unlikely to be “in-house” (Teckal etc.)

    • is there a “works” contract?

    • Commission’s IPPP notice

  • Planning obligations : quality standards, e.g. Code for Sustainable Homes


Summary
Summary

Where EU procurement rules may not apply:

  • “pure” land transactions

  • contracts where “main object” is disposal of land

  • no contractual commitment to develop

  • contracts with outline specification